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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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FERPA; Students; Collective Bargaining; Faculty & Staff

Serv. Emps. Int’l Union Local 503 v. University of Oregon (Or. App. April 4, 2018)

Opinion affirming the decision of the Employment Relations Board. Respondent, the Service Employees International Union (SEIU) Local 58, alleged that Petitioner, the University of Oregon (UO), violated state law by refusing to disclose the names of student witnesses who provided information used by UO to terminate and reprimand two of its employees. The relevant state statute required public employers to “bargain in good faith” with an exclusive employee representative by promptly providing relevant grievance information. UO argued that disclosure of the student witnesses’ identities violated the Family Educational Rights and Privacy Act (FERPA), which was consistent with advice from the Family Policy Compliance Office. However, an administrative law judge determined that the withheld information was not protected by FERPA, while the Employment Relations Board (ERB), through a separate determination based on an assumption that the withheld information was protected by FERPA, found that UO violated the state statute because it failed to consider accommodations that would have satisfied both its obligations under FERPA and SEIU’s right to the information, such as seeking each students’ consent for disclosure. The court affirmed the ERB’s decision, concluding that UO’s efforts were “too minimal to meet its obligations” under the relevant state law.

4/10/2018
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Collective Bargaining; Faculty & Staff

SEIU Local 503, Opeu v. Portland State Univ. (Or. Empl. Rel. Bd. Feb. 13, 2018)

Order adopting the Administrative Law Judge’s Recommended Order and dismissing the Service Employees International Union (SEIU)’s Petition. Petitioner, a labor organization representing two separate bargaining units of Portland State University (PSU) employees, filed a petition for unit clarification of Campus Police Sergeants, who they argued were not “supervisory employees” and therefore should be included in one of SEIU’s bargaining units. In determining whether an employee has a supervisory status, Oregon state law looks to 1) whether the employee has the authority to take action or to recommend action in certain specified instances (e.g. hiring, transferring, suspending, promotion, discharging, disciplining, etc.), 2) whether exercising that authority requires independent judgment, and 3) whether the employee holds that authority in the interest of management. Answering each inquiry in the affirmative, the court found that Campus Police Sergeants were supervisory employees based on their ability to assign, direct, and discipline other officers.

3/19/2018
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Collective Bargaining; Contract Administration; Practice of Higher Education Law; Faculty & Staff

Asberry v. Los Angeles Community College District, et al. (Cal. Ct. App. 2d Jan. 3, 2018)

Order reversing the decision of the Los Angeles County Superior Court.  Plaintiff, an adjunct faculty member at Los Angeles Southwest Collage (LASC), alleged that LASC breached the collective bargaining agreement with Plaintiff’s union when LASC neglected to assign her to teach a second class over a 10-year period.  Plaintiff also brought a claim of promissory estoppel, alleging that the college’s Vice President for Academic Affairs promised to compensate her in the amount of $50,000 for the alleged oversight.  The appeals court found that the trial court had weighed too heavily the characterization of the action as one of tortious misrepresentation.  Rather, the court found that Plaintiff’s claims sounded in contract, not tort, and thus that the Defendants were not immune from suit.  

1/5/2018
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Collective Bargaining; Faculty & Staff

Part-Time Faculty Association at Columbia College Chicago v. Columbia College Chicago (N.D. Ill. Nov. 9, 2017)

Memorandum Opinion and Order denying Plaintiff’s Motion to Confirm an Arbitration Award and granting Defendant’s Motion to Vacate. Plaintiff is a union that represents Part-time Faculty at Columbia College Chicago (PFAC) and presently disputes whether Full-time Staff who Teach (FTST), a group of individuals with dual responsibilities as both full-time staff and part-time faculty, are part of the PFAC bargaining unit. At issue is whether the National Labor Relations Board (NLRB)’s ruling that FTST was part of the PFAC bargaining group is determinative, or whether an arbitrator’s ruling “as a matter of contract law” that FTST was not part of the PFAC bargaining group controls. The court found that the NLRB had ultimate authority when dealing with representation issues as provided by the National Labor Relations Act, and an arbitration award that conflicts with an NLRB determination is unenforceable. In support of its decision, the court further found that the arbitrator exceeded his contractual authority when he spoke to matters outside the scope of the written grievance between the parties and enforcement of the arbitral award would have conflicted with public policy.

11/21/2017
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Collective Bargaining; Faculty & Staff

Amicus Brief in University of Southern California v. Nat’l Labor Relations Bd. (Oct. 31, 2017)

Amicus brief by the American Council on Education (ACE) and seven other education associations in support of Petitioner in the case University of Southern California v. Nat’l Labor Relations Bd. At issue is whether the framework used by the National Labor Relations Board (NLRB) in Pacific Lutheran to decide the managerial status of university faculty, which in turn determines their eligibility to form a collective bargaining unit under the National Labor Relations Act, is contrary to the U.S. Supreme Court decision NLRB v. Yeshiva University. Amici argue that the NLRB’s framework adds onerous elements to its existing framework and fundamentally, misunderstands the importance of shared governance and the role of faculty members in American higher education institutional decision-making. 

11/7/2017
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Collective Bargaining; Faculty & Staff

Terra Faculty Association v. Terra Community College (Ohio App. September 29, 2017)

Decision and Judgment affirming the trial court’s award of summary judgment to the Appellee’s and denying Appellant’s Cross-Motion for Summary Judgment. Appellant, Terra Faculty Association, alleged that Terra Community College breached the parties’ Collective Bargaining Agreement (CBA) by declining to arbitrate a grievance involving the non-reappointment of non-tenured faculty. The terms of the CBA required the parties to submit to arbitration to resolve grievances, subject to certain exclusions. The court found that the plain language of the CBA excluded from mandatory arbitration  matters concerning the non-reappointment of non-tenured faculty.  Finding Appellant’s remaining arguments unpersuasive, the court awarded judgment to Terra Community College. 

10/2/2017
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Collective Bargaining; Faculty & Staff

In the Matter of a Petition for Determination of an Appropriate Unit and Certification as Exclusive Representative Service Employees of International Union v. University of Minnesota (Minn. App. September 5, 2017)

Opinion reversing the order of the Bureau of Mediation Services (BMS) as it pertains to bargaining unit classifications. Petitioner, the University of Minnesota (UM), alleged that BMS exceeded its authority under the Minnesota Public Employment Labor Relations Act (PERLA) when it re-assigned lecturers and teaching specialists from the administrative staff unit, Unit 11, to an instructional unit, Unit 8, at the request of the Respondent, Service Employees International Union (SEIU). Looking to the plain language of PERLA, the court found that BMS did not have authority to assign lecturers and teaching specialists to Unit 8, since they were previously assigned by statute to Unit 11, and since there was not sufficient evidence to support the BMS finding that a “significant” modification of occupational duties warranted re-assignment. Neither the changes in occupational duties reflected by 1980 and 2005 policy statements nor SEIU’s argument about the growth of academic professionals in university operations, amounted to “substantial” changes, as required by PERLA.

9/8/2017
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Collective Bargaining; Faculty & Staff

NLRB Decision in University of Southern California and SEIU Local 721 (June 7, 2017)

Decision and Order by the Regional National Labor Relations Board (NLRB) in Region 31 granting summary judgment to Service Employees International Union (SEIU) Local 21. The non-tenure-track faculty at University of Southern California’s (USC) School of Art and Design formed a union, and the election was certified in 2016. Asserting that the adjuncts were not entitled to collective bargaining because they participate in management and shared governance, USC refused to bargain with the unit. SEIU filed a complaint asserting that USC was violating the National Labor Relations Act (NLRA). Concluding that USC could have but failed to raise the certification issue in the prior representation proceeding, did not produce any newly-discovered and previously-unavailable evidence, and failed to demonstrate special circumstances that required the Board to revisit the decision, the NLRB granted the SEIU’s Motion for Summary Judgment. 

6/9/2017
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